J v Police HC Auckland CRI 2006-404-338

[2007] NZHC 266

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-338

J

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 February 2007

Appearances: W M Ryan for Appellant

C Parkhill for Respondent

Judgment:      4 April 2007

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 4 April 2007 at 4pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors

Haigh Lyon, Auckland

Crown Solicitor, Auckland

J V POLICE HC AK CRI 2006-404-338  4 April 2007

[1]      On  5  September  2006    J    was  convicted,  after  a  defended hearing in the District Court, of driving on 29 October 2004 in Avondale, Auckland, with an excess breath alcohol, 486 micrograms of alcohol per litre of breath.  She was fined $500 and disqualified from driving for six months, an order that presently stands suspended.  Her appeal lies only against her conviction.

[2]      A single point was taken for Ms J   in her defence – that the evidential breath test result implicating her was inadmissible because the device used was not, as it needed to be, supported by a certificate of compliance given under s 75A of the Land Transport Act 1998. The only contemporary link, the defence contended, between the device used and the certificate produced in evidence, each of which shared with the other the same serial number, was the test result printout; and that was inadmissible documentary hearsay.

[3]      The first issue on this appeal is whether the Judge was entitled to conclude, as he did, that the link between the two made by the serial number on the test result printout common to both was to be presumed under s 2(4) of the 1998 Act, in the absence of evidence to the contrary, and that was no such contrary evidence. The purpose and effect of s 2(4) in this context appears never to have been considered in this Court or in the Court of Appeal, though it has been alluded to there. There are decisions in the District Court that differ.

[4]      The second issue is whether the Judge could, instead of relying on s 2(4), have  found  the  offence  proved  relying  on  uncontroverted  evidence  from  the constable  who  administered  the  test  that,  eighteen  months  after  the  test,  she confirmed that the serial number on the device she recalled using coincided with that on the test result printout; and thus on the certificate of compliance that she produced carrying the same serial number. The law as to that is now settled. That is the issue I will consider first.

[5]      In her brief of evidence, which was accepted as her evidence in chief, the constable confirmed that on 29 October 2004 she stopped Ms J   in the Avondale area, screened her at the roadside, and then took Ms J   to the Avondale Police Station where she administered the critical evidential breath test, using an Intoxilyzer 5000 device approved under the Transport (Breath Test) Notice No (2) 1989. The result was as set out in the information, she said, and Ms J   did not seek to challenge that result by electing a blood test.

[6]      In answer to questions then put to her to complete her evidence in chief, the constable confirmed that she had taken down the serial number of the evidential breath test device and recorded it on her procedure sheet. In that she was confused. The number she had noted related to the breath screening device she had used at the roadside. The true number, which the constable had not then recorded, was set out on the evidential breath test printout, headed INTOXILYZER® 5000 SN 66-002027.

[7]      The constable next produced a certificate of compliance for the evidential breath test device, together with a letter from the ESR confirming the standing of the signatory. The certificate said this:

EVIDENTIAL BREATH-TESTING DEVICE CERTIFICATE OF COMPLIANCE

Issued under Section 75A of the Land Transport Act 1998

INTOXILYZER ® 5000 Breath Analysis Instrument

Device Serial No.  66-002027

This Certificate of Compliance is issued on 29 June 2004.

The maximum period permitted during which a breath test result must be obtained is 12 months from the date of issue of this certificate; and the device must be returned by 18 April 2005 (end of service life).

The maximum period of service for this kind of device is 15 years. This device’s period of service began on 19 April 1990.

This device is being maintained within the manufacturer’s specifications.

[8]      When cross-examined the constable confirmed that she had not noted the serial number of the evidential breath test device on her procedure sheet. She had, she accepted, obtained that number 18 months later when she knew that the case was to be defended and needed to obtain a certificate of compliance. She then compared, she said, the number on the test result printout with the number on the device at the Avondale Police Station that she recalled using and, having confirmed that the two coincided, obtained the certificate she produced.

[9]      Once the evidence for the prosecution was complete Ms J   elected not to give evidence.  Rather, her counsel took the point that there was no admissible evidence linking the device and the certificate. The officer had not confirmed in evidence, as she needed to he contended, that at the time of the test the serial number on the device coincided with that on the breath test printout. She did not note the number of the device on the night and when she did that, 18 months later, that was far too late to be probative.

[10]     The only contemporary link that there was, he submitted moreover, the test result printout with the common serial number, was inadmissible hearsay unless able to be allowed in under s 3(1) of the Evidence Amendment Act No (2) 1980, and there was no basis for that happening: Brown v New Zealand Police (HC HAM, CRI

419-87-04, 22 October 2004, Priestley and Winkelmann JJ); R v Munro (CA 432/05,

23 February 2006).

[11]     These lines of defence proved futile. The Judge held that the two decisions, to which I have just referred, were delivered per incuriam because neither referred to s 2(4) of the Land Transport Act 1988, which, he held, following Police v Fenton [2006] DCR 72, para 21-30, Judge FWM McElrea, enabled the link between the device and the certificate to be made presumptively. He concluded:

I am satisfied that the certificate of compliance for the Intoxilyzer 5000 contained a serial number which was the same serial number as shown in the printout which is the same serial number as on the device itself.  I conclude, therefore, that the information has been proved beyond reasonable doubt …

[12]     The first at least of the two issues on this appeal that I identified at the outset entails, I am told for Ms J  , a prior question; and that is as to the purpose and effect of the aspect of the Land Transport (Road Safety Enforcement) Amendment Act 2001 of which s 75A was part. The effect of s 75A is not as such disputed. The purpose for which s 75A was passed into law, insofar as that may appear to bear on that issue at least, is.

[13]     The effect of s 75A, it is undisputed, is to shut off challenges to the accuracy of evidential breath testing devices. It is undisputed equally, I understand, that the safeguard for the motorist is the right to elect a blood test. But the purpose of this aspect of the 2001 Act, according to Ms J  , as the speeches made on each reading demonstrate,  is  principally if  not  exclusively to  protect  the  commercial confidentiality of manufacturers, who had threatened to withdraw from New Zealand if their manuals continued to be accessible to the defence. It is not to make the police case  impregnable,  particularly where  the  link  between  the  device  and  a  s  75A certificate is lacking. The police contend, simply, that the purpose of s 75A is to be found in the effect and that the protection of manufacturers was intended but incidental.

[14]     The first issue on the appeal, though not that to the fore in the judgment, is not so much whether the serial number on the test result printout is admissible to make the link between the device used and the certificate produced, as to which there appears no real controversy, but whether it can be the sole link and whether it is, intrinsically, hearsay or direct evidence.

[15]     The printout can, it is accepted for Ms J  , supply a basis for the link between certificate and device, where the serial number on the device and the certificate and the printout coincide.  But as to that, as Brown says it is contended, the printout is inadmissible hearsay unless s 3(1) of the Evidence Amendment Act No (2) 1980 applies and here it could not. The programmer of the device was never identified; his or her availability and memory of the issue remain unknown. The police contend, by contrast, that the serial number on the test result printout can be

and was in this case, as the Court of Appeal held in Munro, direct evidence of the identity of the device, enough by itself to link the device to the certificate in the absence of challenge for cause.

[16]     The second of the two issues on the appeal, that to the fore in the judgment, is whether the Judge misapplied s 2(4) of the 1998 Act in treating the number on the test result printout as presumptive proof of the serial number of the device, linking in that way the device to the certificate with the same serial number.

[17]     It is contended for Ms J   that s 2(4) only enables a device to be linked by make and model, presumptively, to Gazette notices approving and governing the use of devices of that make and model. Section 2(4) does not, it is contended, excuse the police from having to prove the identity of the device by serial number for the altogether different purpose of supporting it by s 75A certificate. Section 2(4), it is contended for the police, on  a plain reading,  carries the presumption the Judge invoked to resolve this case.

[18]     In the last resort the police rely on s 64(2), which excuses any lack of strict compliance as long as there has been reasonable compliance. On the view I take of the two issues on this appeal there is no need for me to consider how far s 64(2) might apply or with what result.

Certificate of compliance

[19]     The certificate of compliance that s 75A makes mandatory is one measure, amongst others, introduced by the Land Transport (Road Safety Enforcement) Amendment Act 2001 and there is no need to resort to the Parliamentary debates to identify the reason why. Section 3(a) places that beyond debate. It declares that purpose to be to ‘improve road safety enforcement’ by:

removing the defence of error or possible error in the result of an evidential breath test and ensuring that an evidential breath test is conclusive,  but subject to safeguards to protect the right of defendants.

[20]     The effect in law is, as the Court of Appeal confirmed in R v Allen (CA

15/06, 4 May 2006), equally unambiguous. The Court held at para [12] that the Act precludes evidential breath test results being challenged on the ground of possible inaccuracy:

In the light of the 2001 amendments, it is clear that there is now no defence that the breath testing device has malfunctioned. If a motorist has any concerns about the result of a test, the appropriate course of action is to undergo an evidential blood test, which renders the evidential breath test irrelevant.

[21]     Section 75A plays its part by requiring, if implicitly, that before an evidential breath test can be relied on at all to found the offence charged the device from which it was obtained must be supported by a certificate of compliance, in a prescribed form, produced at the hearing: subs (1), (2), (5), (6). Then, subs (3) accords to the certificate this conclusive effect:

… a certificate of compliance … is for all purposes conclusive evidence of the matters stated in the certificate and neither the matters stated in the certificate nor the manufacturer’s specification for the device concerned may be challenged, called into question, or put in issue in any proceedings in respect of an offence involving excess breath alcohol recorded by the device.

[22]     Section 75A(3) is subject to subs (4), which shuts off any attack without cause to  the authenticity of  a certificate.  Section  75A  does  not,  in  subs  (4)  or elsewhere, shut off any such attack on the sufficiency of the link, if any, between the certificate produced and the device used. Hence the challenges in this and earlier cases; and thus far only those challenges that have been resolved on the evidence have gone to appeal in this Court or the Court of Appeal.

[23]     Judge McElrea’s resort in Fenton to s 2(4), on which the Judge in this case relied, was not the subject of appeal and there is one contrary judgment in the District Court. Very recently in Police v Belt (DC Auckland, CRN 06004046715, 9

February 2007), Judge SG Lockhart QC held that s 2(4) cannot apply.

Linking evidence – direct or hearsay

[24]     The Brown and Munro decisions, which the Judge in this case saw as made per incuriam because neither refers to s 2(4) (and incorrectly so because s 2(4) was not essential to the result in either), to the extent that they converge and diverge share a common source, the decision of the late Judge K R R Williams in New Zealand Police v Munro (DC Manukau, 13 September 2004).

[25]     There the constable, who administered the evidential breath test, identified the device at the time of the test by taking the serial number from a plastic label attached  to  the  top.  He did  not  attempt  to  confirm  the  number  directly,  or  the accuracy of the label, by checking the manufacturer’s serial number stencilled on the back.  The  device  was  bolted  in  place  and  the  back  was  against  a  wall.  Judge Williams held the serial number on the label and that on the test result printout both to be inadmissible hearsay.

[26]     Within scarcely more than a month, on 22 October 2004, in Brown, Priestley and Winkelmann JJ resolved the linkage issue in that case by holding that where a constable asserts that the certificate produced relates to the device used that is probative in the absence of challenge. That is what the case stands for. The Court had no need to say more, let alone to invoke s 2(4). They considered themselves constrained, however, because of what Judge Williams had said in Munro, to go further.

[27]     First, they said, cl 2(2) of the Transport (Breath Tests)  Notice (No 2) 1989, which deems to be accurate, unless rebutted, such identifying details of a device as the trade name and number, did not help the prosecution. The purpose of the 1989

Notice was to approve and to prescribe the use of particular forms of device, and the purpose of the cl 2(2) presumption was to serve those purposes only.

[28]     That being so, the Court said at para [47], the statement of the serial number on the test result printout was, on the face of it, inadmissible hearsay:

The  serial  number  has  been  recorded  by  the  ‘maker’,  the  person  who programmed the device to print out its serial number, each time it printed out

a breath test result. That information is stored, and constantly reiterated on every printout from the device.

They held also that the statement could, if it qualified, be admitted under s 3(1) of the Evidence Amendment Act (No 2) 1980. Preferably, the Court said, to avoid any such difficulty, there ought to be direct evidence as to the identity of the device.

[29]     On 28 September 2005, eleven months later, Simon France J in Munro v New Zealand Police (HC Auckland, CRI 2004-404-404, 28 September 2005) resolved the appeal from Judge Williams’ decision; and he did so as the full Court in Brown had done. He held that there had been unchallenged evidence from the constable linking the device and the certificate. He too felt obliged to go further. He too had no need to invoke s 2(4).

[30]     The plastic label on the top of the device replicating the serial number was not, Simon France J concluded, documentary hearsay. It was direct evidence of the device’s identity. At para [29] he said this:

In my view the evidence is given as a piece of identification evidence, circumstantial in nature, from which one might infer that the device is the device to which the Certificate refers. It is no different from saying the machine had a spot of red varnish on it, or a scratch on the top left corner.

[31]     He did not express any view about whether the statement on the printout of the serial number was or was not documentary hearsay. He said at para [33]:

I do not need to discuss the printout. It is not clear when it will be necessary to rely on it to prove identity. Brown is authority for the proposition that it may  be  admissible  under  the  Evidence  Amendment  Act  (No  2)  1980, provided the appropriate evidence is led. Whale, Pethig and Newton (1990) 6

CRNZ 232 are probably authority for the proposition that it may be admissible anyway under the general exception to hearsay most recently

discussed in R v Manase [2001] 2 NZLR 197.

[32]     That was the state of authority when on 12 October 2005 Judge McElrea decided Police v Fenton, a case in which the constable, whose evidence was challenged, was unable to make the link between the device and the certificate by recourse to the manufacturer’s serial number stencilled on the back. There too the device was bolted to the wall. Instead the constable relied on the serial number on the printout, which she said in her experience was always that of the device.

[33]     Judge McElrea did not, in the first instance, assess whether the link could be made evidentially by resort either to Brown or Munro. He took a more direct path. He held that, in the absence of a challenge for cause, s 2(4) deemed the serial number on the test result printout to be that of the device, thus linking the device to the certificate produced which had the same serial number. Only then, relying on Brown, did he hold that the test result printout was admissible to prove the serial number under s 3 of the Evidence Amendment Act (No 2) 1980.

[34]     When on 5 September 2006 the Judge in this case, relying on Fenton, also invoked s 2(4) he may well have been left with the impression that the state of authority was as it had been before Judge McElrea. That is not so. On 26 February

2006 the Court of Appeal in Munro, when declining special leave to appeal from the decision of Simon France J, with which they agreed, went further; and again, though this time s 2(4) was alluded to for the appellant in framing one of three issues said to arise on the appeal, without any need to refer to it either.

[35]     The serial number on the test result printout, the Court considered, was no more hearsay as to the identity of the device than the number on the plastic label on the top, stating at para [24]:

The correct way to consider the information relating to the machine’s serial number on the test printout is that it is an identifying characteristic of the machine as much as a manufacturer’s number stamped, pressed or otherwise documented on the back of the machine.  The number on the back is hearsay as to its enumeration in the manufacturer’s records but primary evidence of that particular identifying feature of the machine.   In just the same way a document produced by the machine in the course of its intended operation, documenting its serial number, is another identifying feature of the machine.

And:

Absent any evidence at all to indicate that the machine produces records of random serial numbers, or that someone has mistakenly or deliberately tampered with the machine in a way which results in false identifying characteristics,  the  presumption  must  be  that  a  machine  which  has  the number  3220  affixed  to  its  top  and  which  produces  its  own  records indicating a corresponding number is identifiable by reference to a serial number 3220.

[36]     Strictly speaking, this statement like the wider reaching statements in Brown

and those of Simon France J, is obiter. But it will stand as an authoritative statement

of the law unless and until revisited by the Court of Appeal in a case where the issue directly and inescapably arises. The Judge could then by recourse to that statement and without recourse to s 2(4), absent any challenge for cause, have concluded that the test result printout the constable produced linked the device used with the certificate obtained 18 months later.

[37]     In that, I do not ignore or condone the constable’s delay. But her failure to note the serial number at the time of the test was a single omission. She was not demonstrably lax in her conduct of the test or in the record she otherwise made of it. Nor is there any reason to doubt the coincidence she identified between the number on  the  device  and  that  on  the  printout.  Rather,  despite  the  elapse  of  time, considerable though it was, that coincidence speaks for itself.

Ambit of s 2(4)

[38]     That conclusion is enough to resolve this appeal, but I need also to refer to s 2(4), if only because that was the basis for the Judge’s decision. Read literally, s

2(4) is plain enough. It may seem less so when set against its context and history, a complexity to which the submissions made did not extend fully, but I see no reason to dissent from the Judge’s conclusion.

[39]   Section 2(4), read literally, enables particular devices to be identified presumptively by trade description, by model and by number, either from what is apparent from the device itself in whatever way that may be, or from accompanying material. It says:

In the absence of proof to the contrary, a device is to be treated as bearing or being associated with a particular trade name or number or other expression if that name or number or other expression—

(a)Appears on the device, whether on a label or otherwise, or is shown on a display panel on the device; or

(b)       Is printed out by the device on a card or on paper; or

(c)       Appears on printed matter that—

(i)       Accompanies the device; and

(ii)      Is   associated   with   the   device   or   is   intended   by   the manufacturer of the device to be associated with the device; and

(iii)     Is issued by or on behalf of the manufacturer.

[40]     Reduced  to  the  words  pertinent,  moreover,  s  2(4)  is  on  a  plain  reading capable, as Judge McElrea held in Fenton, of making the serial number on a test result printout a presumptive identifying attribute of the device in order to link it to a certificate of   compliance, just as the Court of Appeal held in Munro is open circumstantially:

In the absence of proof to the contrary, a device is to be treated as bearing or being associated with a particular … number … if that number … is printed out by the device on a card or on paper.

[41]     There is, I think, only one reason for pause before allowing s 2(4), as the Judge did in this case, that literal and decisive effect; in Brown Priestley and Winkelmann JJ declined to read cl 2(2) of the Transport (Breath Tests) Notice (No 2)

1989, on which s 2(4) is closely modelled, as having that effect.

[42]     There is an immediate answer to that. Clause 2(2), as the Court said, serves the purposes of the 1989 notice only, whereas s 2(4) is a presumption informing the

1998 Act as a whole. But that is not conclusive. The question is how widely s 2(4) does that and before the 2001 Act s 2(4) may not have had any wider actual effect than cl 2(2). Then it appears only to have complemented s 2(3), which authorised and still only authorises the issue of Gazette notices to approve ‘a kind of device or a test’, of which the only extant instance is the 1989 notice. The purpose of a s 75A notice is quite different. It is to specify the indispensable contents of a certificate of compliance.

[43]     Section 2(3) does not determine however, the scope of s 2(4). They are not expressly linked and s 2(4) is writ large. Nor are the purposes of s 2(3) and s 75A, though distinct, to be seen as opposed. The contrary is the case. They relate to the same evidential breath testing devices and are complementary in general purpose. Before s 75A was introduced to make evidential breath tests conclusive those tests,

conducted with devices approved by the 1989 notice and used as it requires, were vulnerable to attack as to accuracy. The purpose of s 75A was to shut off that form of attack.

[44]     To achieve that s 2(2) was enlarged to accord to Gazette notices issued under s 75A(5), like the 1989 notice issued under s 2(3), the status and effect of regulation. Section 64(2) was extended to excuse strict compliance with s 75A as long as there was reasonable compliance. Yet if that were the extent of the measures taken or contemplated certificates of compliance, intended to be conclusive, would be vulnerable to undermining as has been attempted in this case.

[45]     Accepting then, as one must, that for certificates to be conclusive there must be a firm link in fact or law to the devices to which they relate, is it any answer to say that because that link can be made by direct evidence, derived either from the device or the printout, that is what Parliament intended? I do not think that it can be. Parliament  cannot  have  intended,  I  consider,  to  leave  the  fate  of  so  pivotal  a certificate at large in that way, given that it had chosen to buttress s 2(3) notices by s

2(4). Section 2(4), I consider, must in 2001 have been seen as encompassing without any need for amendment s 75A notices as well even if that enlarged its then actual scope. The only question can be whether s 2(4) is writ large enough for the task.

[46]     Section  2(4),  which  identifies  presumptively  an  evidential  breath  testing device by trade name, model and number, extends naturally to the four notices issued under s 75A(5) in 2001 in respect of the four devices now in use. Each identifies the device to which it relates in just that way. That  in point here is the Land Transport (Certificates of Compliance for Evidential Breath-Testing Device (Intoxilyzer 5000)) Notice 2001, cl 3 of which defines ‘Intoxilyzer 5000’ as having the same meaning as in cl 2(2) of the 1989 notice:

Intoxilyzer 5000 means an Intoxilyzer® 5000 breath analysis instrument; and includes an Intoxilyer® 5000EN breath analysis instrument and any other device having the trade name ‘Intoxilyzer’ and associated with the number 5000 or with an expression containing the number 5000.

[47]     The  crucial  issue  is  whether  s  2(4)  extends  beyond  a  trade  name, incorporating a number, to the one identifying attribute of a device capable of linking

it to a certificate of compliance and that is its unique serial number. So one comes full circle and the answer, I consider, remains, as I said earlier, plain on the face of s 2(4) itself.

[48]     Whatever  the  actual  effect  of  s  2(4)  may  have  been  before  the  2001 amendment, it is for the purposes of s 75A now to be read, as it can be without distortion, to deem the number ‘printed out by the device on a card or on paper’, the number on the test result printout, to be the number that the device bears or is associated with; its identifying number. And thus, as the Judge held, that number can and will suffice without more to link the device to a certificate of compliance bearing the same number.

Conclusion

[49]     In deciding as he did that Ms J  ’s evidential breath test result was admissible and conclusive against her, the Judge misunderstood the effect of the second of the two authorities cited to him, the Court of Appeal’s decision in Munro. But he could have reached the same conclusion by resort to Munro and it appears to me equally arguable that he applied s 2(4) correctly. Ms J  ’s appeal will be

dismissed.

P.J. Keane  J